Reckless & Unsubstantiated Allegations Against Wife, Disowning Child & Refusing DNA Test, Amount To Cruelty By Husband: Karnataka High Court
The Bench said that the two-year desertion period not made out on husband’s own pleadings; mere oral allegation of cruelty without corroboration cannot justify divorce under Section 10(1)(x) of Indian Divorce Act.
The Karnataka High Court, Dharwad Bench held that reckless and unsubstantiated allegations made by a husband against his wife, including denial of the paternity of a child born during the marriage and a refusal to undergo a DNA examination, would amount to cruelty on his part. The Court set aside a decree of divorce granted to the husband.
The Court held that the ground of desertion under Section 10(1)(ix) of the Indian Divorce Act, 1869 failed because the mandatory two-year period was not made out even on the husband’s own pleadings. It further held that a mere oral allegation of cruelty, without concrete proof or corroboration, cannot justify a decree of divorce under Section 10(1)(x).
A Division Bench of Justice M.I. Arun and Justice Raghavendra Seetharam Srivatsa observed, “The nature of reckless and unsubstantiated allegations made by the respondent against the appellant would surely amount to cruelty on his part towards the appellant. Moreover, the child was born on 15.12.2011, i.e., during the subsistence of a valid marriage between the appellant and the respondent. The presumption under Section 112 of the Indian Evidence Act is that such a child would be that of the respondent-husband. In the face of such a statutory presumption, the respondent-husband has proceeded to make baseless allegations not only about the paternity of the child but also about the character of the appellant. Such irresponsible conduct of the respondent ought to have been noticed by the Family Court while taking a final view on the divorce petition filed by the husband…”.
“…Far from taking note of such deplorable conduct and irresponsible deposition of the husband, the Family Court has not even adverted to this crucial aspect. In our opinion, while taking a view on the aspect of cruelty, this factor ought to have weighed with the Family Court. One must bear in mind that this case involves allegations of mental cruelty: something very abstract and of which there can be no direct evidence. Conclusions will have to be drawn by the Court based on the facts and circumstances of the case, in accordance with settled principles. The Court has a duty to appreciate the evidence and circumstances holistically to arrive at its conclusion. In our view, the Family Court has erred in its approach towards the evidence in the case”, the Bench noted further.
The parties, who are Christians, married on October 19, 2008 in Hubballi, and a son was born on December 15, 2011. The husband alleged that the wife left the matrimonial home on March 28, 2011 and refused to return. The wife said she was ill-treated and driven out, and that she lodged a complaint at the Mahila Police Station on April 6, 2011, after which the husband agreed in writing that she could stay at her parental home until delivery.
The husband filed his petition before the Family Court, Hubballi, on September 18, 2012, under a petition labelled as one under Section 10-A of the Act, which concerns divorce by mutual consent. He alleged adultery, desertion and cruelty. By judgment dated January 25, 2017, the Family Court held adultery not proved but granted divorce on desertion and cruelty. The wife appealed under Section 55(1) of the Act, where no one appeared for the husband.
On desertion, the Court held that the Family Court showed “total non-application of mind”, since the petition was filed about 18 months after the alleged desertion began. On cruelty, it noted that Section 10(1)(x) requires cruelty causing a reasonable apprehension that living with the respondent would be harmful or injurious. It observed that the Family Court identified no particular act of cruelty by the wife and that her single police complaint, which ended quickly, was not cruelty. It held that the husband had adopted blanket denial, disowned the child despite the presumption under Section 112 of the Evidence Act, and made sweeping allegations about her character.
“The statutorily mandated period of two years of desertion is not made out even as per the respondent husband’s own case. The finding of the Family Court on that ground is plainly erroneous. The discussion on the ground of cruelty by the Family Court is surely unsatisfactory. Moreover, all relevant factors, including the irresponsible deposition of the respondent including disowning the child and refusing to undergo DNA examination ought to have featured in the judgment of the Family Court. On an overall examination of the material on record and the judgment of the Family Court, we are of the opinion that there has been non-application of mind to the relevant factors by the Family Court. The judgment and decree of the Family Court, therefore, deserve to be set aside”, the Bench said.
Cause Title: S v. J S/o D (Neutral Citation: 2026:KHC-D:17353-DB)
Appearances:
Appellant: P.S. Tadapatri, Advocate, for K.L. Patil, S.B. Naik and B.C. Indi, Advocates.
Respondent: Aayush G. Bhat and G.A. Bhat, Advocates (no representation at hearing).